EUROPEAN PARLIAMENT Science and Technology Options Assessment S T O A Current policy issues in the governance of the European patent system STUDY (IP/A/STOA/IC-2008-188) IP/A/STOA/2009-01 PE 424.763 DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT A: ECONOMIC AND SCIENTIFIC POLICIES SCIENCE AND TECHNOLOGY OPTIONS ASSESSMENT Current policy issues in the governance of the European patent system REPORT ABSTRACT The European Parliament has been working towards building a discussion platform and a resource for further policy actions in the field of intellectual property rights. The Science and Technology Options Assessment Panel has set the goal of further enlarging the area of investigation in light of recent policy developments at the European level. In particular, the current study covers current policy issues in the governance of the European patent system, such as the backlog issue, the enhancement of patent awareness within the European Parliament, patent enforcement, the regional dimension of intellectual property in Europe, patents and standardisation, the use of existing patents, and patents and competition. These issues were discussed in the conference with stakeholders from European to national patent offices, from private to public sector actors. As a result of the conference, it was stated the need for an IP strategy for Europe. IP/A/STOA/IC/2008-188 MARCH 2010 PE 424.763 EN STOA - Science and Technology Options Assessment _________________________________________________________________________________________ This project has been carried out by ETEPS. AUTHORS Víctor RODRIGUEZ (TNO) Jos LEIJTEN (TNO) Giuseppe SCELLATO (Fondazione Rosselli) Bianca POTI (Consiglio Nazionale delle Ricerche - CNR) Ove GRANSTRAND (Chalmers University of Technology) RESPONSIBLE ADMINISTRATOR Miklos GYÖRFFI Policy Department A: Economic and Scientific Policy DG Internal Policies European Parliament Rue Wiertz 60 - ATR 00K076 B-1047 Brussels E-mail: [email protected] LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact STOA or to subscribe to its newsletter please write to: [email protected] Manuscript completed in December 2009. Brussels, © European Parliament, 2009. This document is available on the Internet at: http://www.europarl.europa.eu/stoa/default_en.htm DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Current policy issues in the governance of the European patent system _________________________________________________________________________________________ EXECUTIVE SUMMARY The Science and Technology Options Assessment (STOA) Panel of the European Parliament published the final report of its project on ‘Policy options for the improvement of the European patent system’ in 2007. As a follow up to this, the Panel launched the project ‘Current Policy Issues in the Governance of the European patent system’ in 2009. As the first step in the current project, and in view of the results of the previous project, the Panel has organised a conference with the goal of reviewing issues related to the current status of governance of the European patent system. The European Parliament has been working towards building a discussion platform and a resource for further policy actions in the field of intellectual property rights. The Science and Technology Options Assessment Panel has set the goal of further enlarging the area of investigation in light of recent policy developments at the European level. In addition, issues related to intellectual property (IP) are of interest to several different committees. Therefore, a common forum within the European Parliament could be set up in order to ensure coherent IP policy design, as stated in the policy options for the improvement of the European patent system. One important aim is to work towards building a discussion platform and a resource for further policy actions linking Members of the European Parliament from different committees with stakeholders in order to improve decision-making on patent-related issues. It might be difficult for the current body of parliamentarians to make any commitments because of the approaching end of their terms. For this reason, the Lisbon Forum is regarded as a plausible solution to bridge the gap between the two legislative periods. A Draft Report was prepared as a background paper for the conference. That paper and the input from the conference have contributed to the formulation of this Final Report. It is worth mentioning that the results of the project are not expected to support, defend or contest any of these issues, but rather to analyse them realistically, and to signal to what extent they may cause a need for policy intervention. Indeed, different opinions exist about the acuteness of the issues. This study aims at providing a balanced view on how important these problems are and why. The topics of this study follow. The backlog issue: Over the last decade, the time for getting a patent, as well as the related backlog of patents has risen considerably. The consequence of this is an increase of legal uncertainty. Patent enforcement: While European legislators are still negotiating a European Union (EU) Patent Litigation System which should handle disputes relating to both existing European Patents and Future Community Patents, small and medium size enterprises (SMEs) already encounter difficulties in enforcing their rights before national jurisdictions. Regional dimension of IPR in Europe: The EU's Regional Policy is more and more associated with the achievement of the Lisbon Strategy, which aims at building up Europe as a world leader in the field of the 'Knowledge Based Economy.' Consequently, the funds made available for achieving this goal, which come under the competitiveness programmes, have dramatically increased over the past few years. IP/A/STOA/2009-01 3 PE 424.763 STOA - Science and Technology Options Assessment _________________________________________________________________________________________ Patent and standardisation: In an information and communication technology (ICT) oriented world, standards are a key driver for innovation. However, co-existence with patents raises some questions. What could be the interface between ICT standardisation policy, IPR and competition law? What could be the balance between IPR, inter- operability and competitiveness? How to ensure a correct balance between the interests of licensees and licensors and the transparency of licensing? How to identify relevant IPR in connection with standards? The use of existing patents: Third Parties have access to relevant information relating to European patent applications via free access websites. However, once the European patent has been granted, it becomes a bundle of national patents governed by national laws. Patent and competition: In the past few decades, the European Court of Justice has made the legal distinction between the existence and the exercise of IPR. While the first is not challenged per se, the second one has to comply with competition rules. IP/A/STOA/2009-01 4 PE 424.763 Current policy issues in the governance of the European patent system _________________________________________________________________________________________ Table of Contents Abstract ...................................................................................................................................... 1 Executive summary.................................................................................................................... 3 1 Introduction ........................................................................................................................ 6 1.1 Background ................................................................................................................ 6 1.2 Approach ....................................................................................................................7 1.3 The topics of the study ............................................................................................... 8 2 The backlog issue............................................................................................................. 11 2.1 Problématique........................................................................................................... 11 2.2 What we already know............................................................................................. 11 2.3 What is new.............................................................................................................. 13 2.4 Policy implications................................................................................................... 14 3 The enhancement of patent awareness within the European Parliament ......................... 16 3.1 Problématique........................................................................................................... 16 3.2 What we already know............................................................................................. 17 3.3 What is new.............................................................................................................. 19 3.4 Policy implications..................................................................................................